Citation Nr: 1333308 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 07-17 109A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, which assigned a higher 50 percent rating for the Veteran's service-connected posttraumatic stress disorder (PTSD), effective October 25, 2005. Thereafter, the Veteran's file was transferred to the RO in Cheyenne, Wyoming. In a January 2008 rating decision, the RO assigned a 100 percent rating for the Veteran's service-connected PTSD, effective June 21, 2007. In a March 2008 rating decision, the RO determined that August 12, 2006 was the appropriate effective date for a 100 percent rating for PTSD because new evidence indicated that the Veteran voluntarily resigned from his prior employment on that date. This case was previously before the Board in October 2010 at which time the Board remanded the issue of entitlement to a TDIU pursuant to the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009). That same decision denied the Veteran's claim for disability ratings greater than 30 percent prior to October 25, 2005, and greater than 50 percent prior to August 12, 2006 for PTSD. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In June 2011, the Court issued an order granting the parties' Joint Motion for Partial Remand (Joint Motion) to vacate the Board's October 2010 decision regarding increased ratings for PTSD greater than 30 percent prior to October 25, 2005 and greater than 50 percent prior to August 12, 2006 and remanded the issue to the Board for compliance with the Joint Motion. In May 2012, the Board again denied the Veteran's claim for an initial disability rating greater than 30 percent prior to October 25, 2005 and greater than 50 percent prior to August 12, 2006 for PTSD. In June 2012, the RO denied a TDIU prior to August 12, 2006. As such, this case has been returned to the Board for further adjudication. FINDINGS OF FACT 1. The Veteran first met the schedular criteria for entitlement to a TDIU on October 25, 2005. At that time, his service connected disabilities were PTSD, rated at 50 percent disabling; shell fragment wounds (SFW) to the back, rated at 20 percent disabling; SFW to the neck and right shoulder, rated at 10 percent disabling; tinnitus, rated as 10 percent disabling; bilateral hearing loss, rated as noncompensable; SFW to the buttocks, rated at noncompensable; and malaria, rated at noncompensable. His combined disability rating was 60 percent. 2. Thereafter, in January 2008, the Veteran was awarded a 100 percent schedular rating for his PTSD. A March 2008 rating decision assigned an effective date of August 12, 2006. 3. The overall competent evidence does not show that the Veteran's service-connected disabilities, other than his PTSD, render him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW The criteria have not been met for a TDIU. 38 U.S.C.A. §§ 1154, 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(b) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA) is codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) and redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, preadjudication VCAA notice was provided in a June 2007 letter, which advised the Veteran of what information and evidence is needed to substantiate his claim for a TDIU, as well as what information and evidence must be submitted by him and what information and evidence will be obtained by VA. This letter further advised the Veteran how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes service treatment records, VA treatment records for the Veteran's service-connected disabilities, VA treatment records, and lay statements. It appears that all identified private and VA treatment records have been obtained. There is no indication of the existence of additional evidence to substantiate the claim. The Veteran was also afforded VA examinations in December 2003, December 2005, May 2007, August 2007, and November 2010. The Board finds that such VA examinations and opinions are adequate to decide the issue as they are predicated on an interview with the Veteran; a review of the record, to include his service treatment records; and physical examinations with diagnostic testing. The examiners considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issue decided herein has been met. Additionally, in obtaining the November 2010 VA examination, the Board finds that there has been substantial compliance with the prior October 2010 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board notes that the evidence already of record is adequate to allow resolution of the appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty under the VCAA. II. Analysis The Veteran argues that he is unemployable by reason of his service-connected disabilities, specifically, his PTSD and SFWs of the back and right shoulder. He specifically contended on a VA Form 21-8940 which was date-stamped as received by the RO on June 21, 2007, that he had been forced to quit working in July 2006 due to his service-connected PTSD and SFW disabilities. A TDIU requires impairment so severe that it is impossible for the average person to obtain and maintain a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by disabilities that are not service connected. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2013). In making this determination, the critical inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). If there is only one service-connected disability, it must be ratable at 60 percent or more. Whereas, if there are two or more service-connected disabilities, at least one must be ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. But disabilities resulting from common etiology or single accident, or affecting both upper and lower extremities, will be considered as one disability in determining whether these threshold minimum rating requirements are met. 38 C.F.R. § 4.16(a). Here, the Veteran first met the schedular criteria for entitlement to a TDIU on October 25, 2005. At that time, his service connected disabilities were PTSD, rated at 50 percent disabling; SFW to the back, rated at 20 percent disabling; SFW to the neck and right shoulder, rated at 10 percent disabling; tinnitus, rated at 10 percent disabling; bilateral hearing loss, rated at noncompensable; SFW to the buttocks, rated at noncompensable; and malaria, rated at noncompensable. His combined disability rating was 60 percent. In a January 2008 rating decision, the Veteran was awarded a 100 percent schedular evaluation for his PTSD. Therefore, when considering all of his service-connected disabilities, he satisfies these threshold minimum rating requirements of this governing regulation for consideration of a TDIU - that is, without having to resort to the special extra-schedular provisions of 38 C.F.R. § 4.16(b). So resolution of this appeal instead turns on whether his service-connected disabilities, in combination, preclude him from obtaining and maintaining substantially gainful employment. In making this determination, the Board must assess whether there are circumstances in the Veteran's case, apart from any non-service connected conditions and advancing age, which would justify a TDIU. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). In Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a Veteran need not establish "100 percent unemployability" to prove his inability to maintain a "substantially gainful occupation." The Federal Circuit declared, Requiring a veteran to prove that he is 100 percent unemployable is different than requiring the veteran to prove that he cannot maintain substantially gainful employment. The use of the word "substantially" suggests an intent to impart flexibility into a determination of the veterans overall employability, whereas a requirement that the veteran prove 100 percent unemployability leaves no flexibility. While the term "substantially gainful occupation" may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent. Id. at 1385. To be granted a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Additionally, regarding the Veteran's TDIU claim, in June 7, 1999, VA's Office of General Counsel (OGC) issued VA O.G.C. Prec. Op. No. 6-99, addressing questions of whether a claim for a TDIU may be considered when a schedular 100 percent rating is already in effect for one or more service-connected disabilities. Essentially, that OGC precedent opinion held that receipt of a 100 percent schedular rating for a service-connected disability rendered moot any pending claim for a TDIU, requiring dismissal of the TDIU claim. See also Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994); and Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot). In Bradley v. Peake, 22 Vet. App. 280, 294 (2008), however, the Court determined that a separate total disability evaluation based on individual unemployability due to service-connected disorders rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation (SMC ) under 38 U.S.C.A. § 1114(s). Subsection 1114(s) of title 38, United States Code, requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the SMC benefits provided by that statute. Under the law, subsection 1114(s) benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. The Court held that although a TDIU may satisfy the "rated as total" element of section 1114(s), a TDIU based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of "a service-connected disability" because that requirement must be met by a single disability. The Court declared, however, if a Veteran were awarded a TDIU based on multiple underlying disabilities and then later receives a schedular disability rating for a single, separate disability that would, by itself, create the basis for an award of a TDIU, that the order of the awards was not relevant to the inquiry as to whether any of the disabilities alone would render the Veteran unemployable and thus entitled to a TDIU rating based on that condition alone. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). Thus, the Court in Bradley reasoned, it might benefit the Veteran to retain a rating based on individual unemployability, even where a 100 percent schedular rating has also been granted. Consequently, the OGC took action to withdraw its prior opinion. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of SMC. DVA Sum. Op. Gen. Counsel Prec., 75 Fed. Reg. 11229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-99, 64 Fed. Reg. 52375 (1999)). Therefore, VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C.A. § 1114(s) if VA finds the separate disability supports a TDIU independent of the other 100 percent disability rating. See Bradley, 22 Vet. App. 280, 294 (2008); see also DVA Sum. Op. Gen. Counsel Prec., 75 Fed. Reg. 11229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-99, 64 Fed. Reg. 52375 (1999) (the logic of Bradley suggests that, if a Veteran has a schedular total rating for a particular service-connected disability and subsequently claims TDIU for a separate disability, VA must consider the TDIU claim despite the existence of the schedular total rating and award SMC under section 1114(s) if VA finds the separate disability(ies) support a TDIU independent of the other 100 percent disability rating). In this case, the Veteran has a 100 percent rating for his service-connected PTSD, effective from August 12, 2006. Accordingly, an award of a TDIU based on PTSD since August 12, 2006, would result in duplicative payment. Therefore, the questions before the Board are first, whether he is entitled to a TDIU prior to August 12, 2006 based on any of his service-connected disabilities; and, secondly, whether any of his service-connected disabilities, not including PTSD, renders him unemployable since August 12, 2006. Entitlement to a TDIU Prior to August 12, 2006 The Veteran filed a claim of entitlement to a TDIU in July 2006. Thereafter, VA submitted a request for information to the Veteran's last employer. In response to a request for information, the Veteran's last employer, Plains All American, informed VA on a VA Form 21-4192 date-stamped as received by the RO on March 4, 2008, that the Veteran had been employed as a plant worker from June 27, 2003, until August 11, 2006, when he voluntarily resigned his job. So the evidence in the claims file indicates the Veteran was employed until August 11, 2006. A Vet Center Assessment, dated in May 2003, shows that as a result of the Veteran's PTSD, he suffers from sleep disturbance, depression, anger, social withdrawal, and an inability to communicate his feelings. This assessment does not indicate the Veteran is unable to maintain or obtain substantially gainful employment. The Veteran's VA treatment records dated through August 2006 discuss his ongoing treatment for his multiple service-connected disabilities. However, these treatment records also do not indicate whether he was incapable of obtaining and maintaining substantially gainful employment on account of these disabilities. In December 2003, the Veteran was scheduled for a VA compensation examination to assess the severity of his service-connected PTSD. Following a mental status examination of the Veteran, the examiner determined the Veteran's overall capacity for improvement was fair. While this VA examiner commented on the then current severity of this disability, there was no accompanying opinion as to whether it precluded the Veteran from obtaining and maintaining substantially gainful employment. In October 2005, a letter from a Vet Center psychologist commented on the severity of the Veteran's PTSD. The psychologist stated the Veteran has intense anxiety around co-workers, indicating he was then employed. The psychologist also stated that the Veteran's PTSD symptoms cause him to be severely impaired in his ability to handle stress. The psychologist noted that at the Veteran's current job, there is much stress associated with handling volatile gases and he believes the Veteran's anger and exaggerated responses to unexpected noises or other stimuli, put him at risk of hurting someone at work without intending to. However, there was no finding that the Veteran's PTSD precludes him from obtaining and maintaining substantially gainful employment. In December 2005, the RO scheduled another VA examination to reassess the severity of the Veteran's PTSD. During the examination, with respect to employment, the Veteran reported that his job is very volatile, and he has received reprimands in the past and has difficulty hanging on to his current job. The examiner concluded that the Veteran showed continued evidence of nightmares, flashbacks, intrusive thoughts, and symptoms of hyperarousal from his combat-related experiences. Nevertheless, there was no finding that the Veteran's PTSD precludes him from obtaining and maintaining substantially gainful employment. The Board notes that Veteran did not assert that his other service-connected disabilities, aside from PTSD, precluded him from obtaining or maintaining substantially gainful employment. Indeed, there are no opinions or medical evidence of record intimating as such. Therefore, while the evidence of record shows that prior to August 12, 2006, the Veteran's PTSD made working difficult for him, especially at his then place of employment handling explosive gases, he was still capable of obtaining and maintaining substantially gainful employment versus employment that would be considered just relatively marginal in comparison. It is worth reiterating that the record must reflect some factor that takes a particular case outside the norm in order for a TDIU claim to prevail. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The mere fact that a Veteran is unemployed or has had difficulty obtaining employment is not enough. Id. The question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. And, in this particular instance, the evidence is in direct contravention to the Veteran's contentions that prior to August 12, 2006, he was incapable of obtaining and maintaining substantially gainful employment. Entitlement to a TDIU Since August 12, 2006 As mentioned above, since the Veteran is in receipt of a 100 percent rating for his service-connected PTSD, effective from August 12, 2006, an award of a TDIU based on PTSD since August 12, 2006, would result in duplicative payment. Therefore, the Board is only considering the service-connected disabilities of SFW to the buttocks, back, neck and right shoulder, tinnitus, bilateral hearing loss, and malaria, in determining whether he is entitled to a TDIU since August 12, 2006. Since August 12, 2006, the Veteran has undergone numerous VA examinations in connection with his service connected disabilities. First, in May 2007, the Veteran was reexamined to assess the severity of his SFW to the back. Unfortunately, this examination did not comment on whether the Veteran's SFW to the back precludes the Veteran from obtaining and maintaining substantially gainful employment. Also in May 2007, the Veteran was examined to determine whether bilateral hearing loss and tinnitus were attributable to the Veteran's military service. Again, the examiner did not comment as to whether bilateral hearing loss and tinnitus preclude the Veteran from obtaining and maintaining substantially gainful employment. However, in a July 2007 addendum opinion, the same examiner opined that the Veteran may have some difficulty communicating in less than ideal listening situations, such as when there is background noise. There is no indication these disabilities preclude employment. In August 2007, the Veteran was reexamined to assess the severity of his SFW to the buttocks, neck and right shoulder. Following an interview with the Veteran and a physical examination, the examiner determined that the SFW to the neck and right shoulder do not functionally impair his employment, and sedentary employment is feasible. No further comment was provided. In November 2010, in compliance with the Board's October 2010 remand directives, the Veteran was again examined to determine whether the service-connected disabilities alone or in combination, render him unable to secure or follow a substantially gainful employment. Following an interview of the Veteran, a review of the claims file, and a physical examination, the examiner determined the Veteran's malaria is without reoccurrence, and he has a history of SFW to the back, neck, right shoulder, and buttocks. The examiner concluded that the these disabilities would not interfere with obtaining and maintaining employment. As rationale, the examiner stated the Veteran has not had a flare of malaria since it was first diagnosed. Further, regarding the SFW to the back, neck, right shoulder, and buttocks, the examiner stated that employment with ability to shift positions frequently would accommodate his only voiced discomfort, which was laying on his left hip/ buttocks, which caused increased pain. No additional physical limitations were identified. Further, the VA treatment records that have been obtained and associated with the Veteran's claims file detail his ongoing treatment for his various service-connected disabilities. These records do not, however, contain any opinions the effect that these disabilities have renders the Veteran unable to secure or follow a substantially gainful occupation. The Veteran is competent to state what effects he believes his disabilities have on his employment, and the Board finds his statements to be credible. However, the Board finds these statements to be outweighed by the findings of the various and numerous VA examiners that have time and again conclude that only the Veteran's PTSD has an effect on his employability. Given these findings, the Board finds that these opinions outweigh that offered by the Veteran himself. Based on the abovementioned evidence, the Board cannot grant the TDIU claim because the preponderance of the evidence is unfavorable, meaning the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3. There simply is insufficient evidence favorable to the claim to conclude the Veteran is incapable of obtaining and maintaining substantially gainful employment if only his service-connected disabilities are considered. See Fluharty v. Derwinski, 2 Vet. App. 409, 412- 13 (1992); Beaty v. Brown, 6 Vet. App. 532, 537 (1994). ORDER A TDIU is denied. ____________________________________________ APRIL MADDOX Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs